Evidence of meeting #122 for Official Languages in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was language.
A recording is available from Parliament.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I was, but I was young.
I like the idea of a language rights tribunal for the reasons you stated. There's increasing talk about splitting off the commissioner's investigative power and giving the tribunal the authority to take coercive measures. I'm going to continue along the lines of my colleague Mr. Clarke.
There are orders and monetary compensation in the human rights field, but how can you establish pecuniary damages in language rights cases? People react and adjust when they're hit in the wallet, but the situation's different here.
As an Individual
It's not highly developed in language rights. To date, we've tried instead to establish the existence of a right and to apply for declaratory orders from the courts. We haven't really evolved on damages for violations of language rights. However, there are damages. You need only think of the Thibodeau affair, in which the damages option was considered, but other problems arose and constituted barriers.
In the Ambulance New Brunswick case, I'm representing two clients who have suffered enormous non-pecuniary loss, but it's an unfortunate situation because we can't obtain compensation. The fact that damages have never been ordered for a violation of language rights doesn't mean it's impossible.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I understand that, but do you have a practical idea about how it could be done? This is a start. Let's suppose the language rights issue is put before a tribunal, particularly in a minority setting, tomorrow morning.
As an Individual
You grant it the authority to order damages where the judge deems it appropriate. Damages are not an exact science, like mathematics. You and I are lawyers, and we know that. I'm also an industrial relations arbitrator. I sometimes order damages, and I can tell you it's not an exact science. It depends on the evidence adduced, but also on the way the judge or the person present perceives the evidence.
Case law and tests will have to be established; that much is clear. Little consideration has been given to that in the language rights field to date. Much more attention has been focused on having rights recognized and securing declaratory orders so that rights are honoured, but very few forays have been made into the area of damages. Researchers should perhaps take more interest in this dynamic, in this aspect.
Damages may even be claimed in certain cases under the Canadian Charter of Rights and Freedoms. That's provided for by section 24 of the Charter. Damages may be ordered for a violation of a Charter right, a violation of a linguistic obligation. It can also be done under the Official Languages Act. If you're asking me whether there's a mathematical formula under which a violation corresponds to a given amount of money, as is prescribed in some personal injury cases, I'd say it doesn't exist.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
That would be a brand new day. A new process should be developed.
As an Individual
It has to be done. I think we have to be more aggressive now in the remedies we seek.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Since time is limited, I'd like to tell you not to hesitate to write to the committee clerk with suggestions and other information you would like to submit to us. That would be of invaluable assistance to the committee.
My other questions are general in nature and don't necessarily focus on the act. We've heard extensive testimony from lawyers. You said that, even though we have the best act in the world, we need to change the perception that language rights in Canada are only a minority concern. That's an important point; it's not insignificant. What do you mean by that, in practice, in the context of the modernization of the act, and what can the federal government do in that regard?
As an Individual
I think it has to ensure that the majority in Canada realizes that recognition of the two official languages is a fundamental value in our federation. It must increase the awareness that people in the schools, universities, social clubs and everywhere else have of this fundamental value, and not merely of the economic benefit it provides. Yes, that's an important aspect, but I'm annoyed at times when people talk to me solely about the economic value of the two official languages. If we had five languages, their economic value would be significant, but we have to ensure that the Canadian population, the majority, understands the importance of the official languages, whether it be for social peace or merely because they exist.
I've worked around the world, and I would find it hard to name a single country where language isn't an important issue. It exists everywhere, and our way of addressing it in Canada has been to recognize the equality of status of the two official languages in our Constitution, the supreme law of the land, and in our Official Languages Act. We therefore have a societal obligation to make the majority understand how important this act is. The federal government must support initiatives and make Canadians understand the importance of official languages, their importance in the school system and the reasons why we have an Official Languages Act.
I believe we've done a poor job of that until now. It's been very poorly done in my province, New Brunswick, which is also yours. Language rights and the Official Languages Act are perceived as solely a minority problem, whereas it concerns everyone, the majority as well as the minority. We don't emphasize that fact.
Liberal
François Choquette NDP Drummond, QC
Thank you, Mr. Chair.
Mr. Doucet, thank you for being with us. It's always a pleasure to see you in the Standing Committee on Official Languages.
First I'm going to discuss the Court Challenges Program. I've just learned that you were there when it was cancelled. You suggest it should be included in the act to ensure that situation doesn't reoccur.
Am I wrong? What's your interpretation?
As an Individual
Regardless of whether it's the Official Languages Act or another act, I wouldn't want a repeat of a situation in which the program or policy would be cancelled by a regulatory decision. I think the Court Challenges Program is essential for the communities. I've used it. I led the lawsuit for the FCFA when the Court Challenges Program was cancelled. In my view, that essential program helped develop the right to equality and language rights in Canada. It must be maintained. If we did that by providing for it in an act, a debate in Parliament would be required to abolish it.
NDP
François Choquette NDP Drummond, QC
The return to a court challenge program, which, for a while, took the form of a group of experts, is a major victory that you won for Canadians. How did you manage it? Under which part of the act...
As an Individual
We pleaded the case before the Federal Court. We argued, under part VII of the act, that a violation had been committed. Part VII, which had been amended in 2005, had become justiciable in the courts. We pleaded the entire case, but the day before the judge was to render his decision—he had given us a date—the FCFA and the government agreed to establish the Language Rights Support Program, the LRSP.
I don't know whether we won or lost. I've always said it would have been interesting to get our hands on the written decision to see how the judge had interpreted part VII. I hope that will be possible one day. Whether we won or lost, it would have been interesting to see that interpretation. It would have enlightened us as to the scope of part VII.
NDP
François Choquette NDP Drummond, QC
More recently, Judge Gascon's decision has redefined part VII. That's not at all how I interpreted it, and I don't think most lawyers, including you, interpreted it that way either.
How do you think we should revise part VII and the conception we have of positive measures? I'm one of those people—obviously, there are others in Canada—who filed complaints about the Netflix agreement. A preliminary report was subsequently prepared, and I think it would've been different without Judge Gascon's decision. As a result of that decision, part VII no longer means anything. We have no say in the matter. The idea now is that, if the communities are consulted, that constitutes a positive measure, and, apart from that, all we can do is fend for ourselves.
As an Individual
I wouldn't say it no longer means anything. We should continue analyzing part VII despite Judge Gascon's decision.
The federal government's argument at the time was that part VII isn't affected by the cancellation of a program, just as a forest is unaffected by the felling of a single tree, and that, if the forest is still living, this can't be a negative measure. At that point, I asked the judge how many trees had to be cut down before the forest began to disappear and it was too late to save the situation.
I think part VII is essential. You have to define what constitutes a positive measure, and I believe that should be done immediately by regulation and in consultation with the official language minority communities in Canada.
When you say positive measures, we all know what that means, but, at the same time, we don't. This is the kind of provision that causes lawyers to break out in hives. Terms such as "reasonable person" must be defined in order to have content. Those words should be defined in consultation with the official language minority communities because they know best how measures can have a negative or positive impact on them.
NDP
François Choquette NDP Drummond, QC
Judge Gascon's decision is under appeal, and, ultimately, the government is also involved in that appeal. We could sit down with the FCFA and the QCGN to define what constitutes positive measures and to establish regulations for part VII.
As an Individual
Exactly. It would be preferable to do that rather than wait for a court decision that defines or doesn't define what a positive measure is.
Appealing Judge Gascon's decision is one thing, but that doesn't prevent the government from finding a solution to define what constitutes a positive measure.
I've seen that too often in my own province, where the government's argument is that, since the matter is before the courts, the government can't touch it. However, I don't accept that argument. On the contrary, I believe that, even though it's before the courts, we can continue working to improve the way we interpret what constitutes a positive measure.
Liberal
Darrell Samson Liberal Sackville—Preston—Chezzetcook, NS
Thank you very much.
Mr. Doucet, thank you very much for your leadership in this area and in protecting minority rights. You've always been a major player in this regard, and we still rely on you today.
